Legal

“Disgraceful”: Business owner speaks out after Fair Work sides with sacked worker who wrote offensive Facebook post

Emma Koehn /

A business owner has slammed a Fair Work Commission decision that will see him pay $6,200 to a former employee who wrote an offensive Facebook post, labelling the ruling a “disgrace” and saying he would fight the Commission on the decision if he had the resources.

Tony Ottobre, managing director of lighting company LED Technologies, told SmartCompany he stands by his decision to fire a staff member via phone after the employee wrote a Facebook post asking an unnamed person “how much of the bosses c-ck did you suck?”.

The staff member took the company to the Fair Work Commission on the basis his dismissal was harsh and unjust, and the Commission agreed.

“If I had the money, I’d love to take the Commission to court. I think it’s a disgrace, that they expect me not to dismiss someone who’d wrote such language,” Ottobre said this morning.

According to the Fair Work Commission’s case report, in August 2016 Ottobre called the staff member to advise him over phone he had been fired, and told him to return all company property to the LED Technologies office.

The dismissal was a result of a Facebook post that the staff member had written directed an an unnamed individual, which read: “I don’t have time for people’s arrogance. And your [sic] not always right! your position is useless, you don’t do anything all day how much of the bosses c-ck did you suck to get were you are?”

The dismissed staff member said in evidence that the post related to a work conflict his mother was experiencing at her job, and it was meant to be in support of her, because it appeared another staff member was trying to remove her from her position. This business is unrelated to LED.

LED Technologies told the Commission its social media policy prevents staff members from using Facebook and other social media sites while at work, but the staff member argued he was on a break at the time the post was written, and had not been provided with the social media policy documents the company referred to.

When ruling on the case, Commissioner David Gregory said while the staff member’s Facebook post was “crude and immature”, it did not appear it was directed at anybody that worked for LED Technologies. The Commissioner also found that because the staff member was in a sales role that required him to travel, it was reasonable that the post could have been made while he was on break from work.

Finally, in deciding that the dismissal was harsh and unreasonable, Commissioner Gregory ruled the process through which the staff member was dismissed did not provide him “any real opportunity to provide an explanation or response to the reason” for his sacking.

LED Technologies has been ordered to pay $6,238 dollars to the staff member as compensation. Ottobre told SmartCompany “the fine is the best money I’ve spent this year”, because it has ended the conflict, and he can now get on with running his business with staff members he wants to work for him.

He says he still believes the Facebook post was about a staff member at his business, and not the dismissed workers’ mother.

“We will also be taking much more care in hiring people now, including checking people on Facebook, not just their resumes,” Ottobre says.

“The Commissioner obviously felt my decision to sack him on the spot was incorrect,” he says.

However, Ottobre says that in his 15 to 20 years of hiring employees, he has never been brought to the Fair Work Commission before, and given the language used in the Facebook post, he would make the same call again.

“Would I change it? No,” he says.

Businesses should be vigilant on “procedural deficiencies”

Trent Hancock, a senior associate at law firm McDonald Murholme, he believes this case came down to the perceived procedural deficiencies around the dismissal, rather than the social media policies of the company involved.

“The fact that the Facebook post was found to not have related [to the business] is the most important consideration,” Hancock tells SmartCompany.

“But there were procedural issues here. I would say there are three things: the fact that the commission accepted the post wasn’t related to the company; that the commission accepted [the staff member] was on a break; and the procedural side of things,” he says.

While dismissing an employee over the phone can be acceptable if an employer cannot see a staff member face-to-face, Hancock says it’s always worth ensuring that an employee is notified of the reasons for termination first, and given a chance to respond — even if this means delivering those reasons to their home if you cannot reach them, he says.

“Termination by phone is never a good start, but it’s not absolutely essential to have it face-to-face. The employer would want to make sure that the reasons were [given],” he says.

SmartCompany was unable to contact the dismissed employee prior to publication.

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Emma Koehn

Emma Koehn is SmartCompany's senior journalist.

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  • helma Parkin

    Time that people grew up and stopping putting these things on Social Media but of course the young ones can’t keep away from it and wonder why they get into trouble as I to would have fired the person for doing it in while on company property.

  • Thai

    Once again, the Fair Work commission demonstrate how out of touch they are with reality. Reading their judgments you must question their union membership as they apparently have not the slightest idea of what it is like to be an employer in Australia. Clearly union rights are more predominant than employer rights.

  • Michael Ratner

    In this wonderful world of political correctness and bias towards employers, I am now putting a clause in all my job applications to future employees that will read:
    Please indicate if you have ever been involved with an Unfair Dismissal Action…..
    Tick appropriate box…..
    Yes No
    Now let’s see the doogders start jumping up and down.
    Does it mean I am going to discriminate …. only at the time I dismiss the same applicant because they lied on their application form.
    As an employer there’s not much I can ask in any event. This will do for me.

  • Jerome Fandor

    Fair Work-whats Fair about it?

  • Rohan Baker

    So many changes have been made to the FW act that anyone who doesn’t check the changes daily will be non-compliant. This garbage about procedural deficiencies, is supporting lawfare designed to cripple businesses in red tape. Any lawyer that stands by this is a self-serving parasite who wants fewer jobs and zero economic growth.

    Case in point. When the act first came into being in 2010, when FWA made changes to pays at their annual review, it resulted in a 6-7 page document of the old vs new scale. A simple document to understand and implement. Now it’s 80+ pages long for any given award AND I believe is purposefully designed to be so confusing with all the allowances, to trip up every unsuspecting business in costly lawfare.

    The defence rests its case.

  • Steve

    If it was actually established that the employee was off-the-clock when they posted this comment on their personal facebook page, what business is it of the employer? I couldn’t care less if one of my employees engaged in a foul-mouthed slanging match with someone on facebook, in their own time, that was completely unrelated to my business. It was unfair to be dismissed for this, especially without warning. The FWC do get it right sometimes…

  • Scott

    So all of the people posting know and the writer of this article know, the only reason it went to fairwork was to get the employee basic entitlements paid, such as holiday pay, work expenses etc.
    Not a fine as stated.
    Also take note that the employer has NOT paid the employee out in full, to the best of my knowledge, since the decision was given, Mr Ottobre has paid a grand sum of $50 at this point in time ($10 a week). Mr Ottebre also thinks this is acceptable, not bad for a multi million dollar company.
    Interesting how Mr Ottebre is able to send degrading, sexually explicit, sexually harassing emails and text messages to and about the employee to all of LED TECHNOLOGIES other employees and no one bats an eye lid.
    Guess people shouldnt jump to conclusions without ALL the facts.

  • Scott

    This is the second time I am posting here, as it seems my other post has “gone missing”.

    The reason the worker took the owner of LED Technologies or LED Autolamps (or what ever company name he is trading under this month) to the fairwork commission was to get his entitlements (annual leave, expences etc) paid of which is what makes up the total amount of $6,200. To the best of my knowledge, Mr Tony Otterbre has paid a total of $50, so the statement made by Tony Ottobre of LED Technologies told to SmartCompany “the fine is the best money I’ve spent this year”, because it has ended the conflict” is 100% false.

    If the author of this article had done her research correctly or attempted to get all of the information from both sides (which would not have been to difficult to do), she would know all the facts, to write a non biased story.

    In regards to “the policy”, this had at no time been presented nor signed by the employee, so therefore it would be very difficult for the employee to know this information.

    Regardless of what Mr Otterbre assumes the facebook post was aimed toward, he had no factual evidence to support his assumptions.

    Given the evidence the employee provided, it is from my perception of this article and the author of this article acceptable for an employer, such as the a fore mentioned Mr Tony Otterbre to send degrading, defaming, sexually explicit, sexually and verbally abusive emails and text messages to all of his employees about a specific employee.

    Please take note . . . This IS NOT the first time Mr Otterbre and his company LED Technologies (what ever the company has been or is called now) and Mr Tony otterbre has been taken to Fairwork.

    Also, this is not the first place Mr Otterbre has contacted ( http://www.afr.com/news/policy/industrial-relations/fair-work-commission-rules-offensive-facebook-posts-not-valid-dismissal-reason-20170409-gvgzta ) and had an article written in what seems to be an attempt to undermine the Fairwork commission and their decision to support the employee.